By Dr. Faustin Z. Ntoubandi
(Faculty of Law, University of Toronto)
In order to liberate mankind from the odious scourge of genocide, States are under an obligation to prevent and punish acts constitutive of the crime of genocide. Article I of the Genocide Convention provides that:
The contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law, which they undertake to prevent and to punish.
The double obligation to prevent and to punish genocide as contained in Article I of the Convention is reinforced and articulated in other provisions of the Convention. Thus, Article III lists the different acts that are punishable under the Convention (namely, genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide), whereas Article VIII recognizes the right of State Parties to call upon the competent organs of the United Nations to take appropriate actions for the prevention and suppression of genocidal acts. In addition, Article IV identifies the perpetrators that are subject to punishment (i.e. constitutionally responsible rulers, public officials and private individuals), while Article V indicates the mechanisms (legislative enactment) through which appropriate and effective penalties must be meted out for persons guilty of genocide and other prohibited acts. Finally, Articles VI and VII focus on criminal proceedings that are related to the obligation to punish genocide perpetrators.
It is very important to note with the International Court of Justice – in its Advisory Opinion on Reservations to the Genocide Convention, 28 May 1951 – that Article I of the Genocide Convention establishes two independent obligations: the obligation to prevent, and the obligation to punish. Despite a clear link between these two forms of duty, they are distinct from one another. The direct implication of this distinction is that the responsibility of a State for failure to prevent the commission of genocide may exist separately from, or concomitantly with, its responsibility for failure to punish the perpetrators thereof, and vice versa.
Hermeneutics of Article I
The scope and the normative content of the obligation to prevent and to punish genocide were developed and elaborated by the works of three important judicial organs: the International Court of Justice (judicial organ of the United Nations in terms of Article 92 of the United Nations Charter), the International Criminal Tribunal for the former Yugoslavia (established by United Nations Security Council Resolution 827 of 1993), and the International Criminal Tribunal for Rwanda (established by UN Security Council Resolution 955 of 1994). The next paragraphs will briefly give an account of the conceptual approach adopted by these international instances in their interpretation of what the obligations to prevent and to punish imply.
The obligation to prevent genocide
In a series of judgments rendered on 13 September 1993 and on 26 February 2007 (in a case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), the International Court of Justice (ICJ) indicated that the scope of the obligation to prevent is limited to the ‘specific evil’ of genocide, consisting of the acts referred to in Articles II and III of the Conventions. These are all the prohibited acts committed with the necessary intent to destroy a protected group in whole or in part; and other acts amounting to conspiracy, incitement, attempt, or complicity in genocide. In addition, the Court held that the temporal jurisdiction of genocide covers the period when a State ‘learns of, or should have learned of, the existence of a serious risk that genocide will be committed’, and failed to take all the necessary measures that were within its power to prevent its occurrence. Finally, the Court made it clear that the obligation each State has to prevent and to punish the crime of genocide is not territorially limited by the Convention; that is to say that each State Party to the Genocide Convention is called upon to prevent genocide within as well as outside its territorial borders.
A certain number of parameters are taken into consideration in assessing whether or not a State has effectively discharged its responsibility to prevent genocide. Such parameters are either material or mental. However, the determining factor in this assessment is the capacity, for the State concerned, to influence effectively the action of relevant persons. The evaluation of such capacity includes the following elements: (i) the geographical distance of the State concerned from the scene of the events; (ii) the strength of the political and other links between the State and the main actors in the events; (iii) the State’s legal position vis-à-vis the situation and persons facing the danger or reality of genocide; and (iv) the State’s level of awareness of the imminence of the crime. Concerning the latter, it has to be shown that the State ‘was aware, or should normally have been aware, of the serious danger that acts of genocide would be committed’.
Let’s now turn briefly to the nature of concrete actions, which States must take to fulfill their preventive obligations. Since the Genocide Convention is practically silent as to what must be done to prevent genocide, then States are free to decide what initiatives to adopt as part of their obligations to prevent genocide under the Convention. Such initiatives may include any of the following actions: educating communities about genocide and disseminating the Genocide Convention; drawing and publishing reports on any evidence or risk of genocide in foreign countries; adopting national legislative measures imposing (economic, diplomatic, military, travel, etc.) sanctions on States that are planning, attempting or committing genocide; etc. If genocide occurs in spite of the enforcement of such preventive measures, the second form of obligation is activated, which obliges that State concerned to punish the perpetrator thereof.
The obligation to punish genocide
Genocide Convention Article VI indicates the basic attitude each State must adopt vis-à-vis génocidaires. It provides in this regard that:
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
How should this provision be understood?
The first part of this Article obliges State Parties in the territory of which genocide or any other acts of genocide (i.e. conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide) has been committed to establish criminal courts to prosecute the perpetrators thereof. At first glance, this seems to imply that States can only prosecute genocide that has been committed on their territory. That is not true. Article VI does not prohibit or prevent States from prosecuting genocide committed in foreign countries by foreign nationals (such prosecution can, for instance, be base
d on the principle of universal jurisdiction, which makes it possible for a state to prosecute certain particularly heinous crimes even in the absence of any territorial or nationality link to them). It only constitutes a clear indication that the primary obligation to prosecute rests with the territorial State, i.e. the State on the territory of which genocide was committed. In the aftermath of the Rwandan genocide, Rwandan authorities have created various criminal courts and tribunals, in conformity with Article VI, that are competent to hear cases of genocide committed in the territory of Rwanda.
Many other States have adopted statutes pursuant to Article VI, which explicitly provide not only for territorial jurisdiction, but also for universal jurisdiction over genocide. Examples of such statutes include: the 2002 German Code of Crimes Against International Law (Völkerstrafgesetzbuch) Section 1 of which recognizes the jurisdiction of German courts over genocide, crimes against humanity and war crimes committed outside the German territory and to which Germany has no specific link. Likewise, Section 2, § 1(a) of the Dutch International Crimes Act of 19 June 2003 makes provision for universal jurisdiction over genocide provided that the alleged perpetrator is physically present in the Netherlands. Moreover, the Canadian’s Crimes against Humanity and War Crimes Act, adopted on 24 June 2000 sets the basis for universal jurisdiction for genocide; Section 6, §1 of this Act reads as follows:
Every person who, either before or after the coming into force of this section, commits outside Canada (a) genocide […] is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.
Many other countries, including France, Switzerland, Spain, Belgium, and Austria, have adopted national legislation, as required under Genocide Convention Article VI, that allow for the prosecution of genocide committed outside their territories.
The second part of Article VI recognizes the power of Contracting Parties to set up international penal tribunals with jurisdiction over genocide. This provision obliges States Parties to the Genocide Convention, which have accepted the jurisdiction of the international tribunal, to cooperate with it. The International Court of Justice (in the case concerning the Application of the Genocide Convention, Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment of 27 February 2007, §§ 443), has specified the nature and content of the obligation to cooperate with an international tribunal when it stated that such duty includes the requirement to:
“…arrest persons accused of genocide who are in their territory, even if the crime of which they are accused was committed outside it and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal.”
In addition, it appears from the structure of Article VI that an international criminal tribunal is envisaged as a subsidiary forum that shall exist either as an alternative to national penal jurisdictions (in case the territorial State fails to establish them) or as their complement (e.g., the perpetrators of the Rwandan Genocide were prosecuted by both the International Criminal Tribunal for Rwanda, the different Rwandan national courts and tribunals). This latter concept is introduced in the 1998 International Criminal Court system under the principle of complementarity, which clearly indicates that national tribunals are the natural forums to conduct criminal trials.
The most notorious international courts or tribunals with jurisdiction over genocide were established in the past two decades; these are the ad hoc International Criminal Tribunal for the former Yugoslavia (1993), the ad hoc International Criminal Tribunal for Rwanda (1994), and the permanent International Criminal Court (1998).
The ‘obligation to prevent’ and the ‘obligation to punish’ constitute therefore the core legal obligations the violation of which would render other articles of the Convention meaningless. They are the matrix of the Genocide Convention in that they inform and shape the contours, meaning and implications of the other provisions of the Convention. In addition, they provide an indication on the concrete measures that States shall adopt in order to liberate mankind from the odious scourge of genocide.
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